1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 1 2

- 2793

________________ JOE L. ANDREWS; ELGIN I. MCCARGO, Executor of the Estate of Annie McCargo

- Andrews a/k/a Annie Murl McCargo

- Andrews, Appellants

v. MON ROE COUNTY TRANSIT AUTHORITY; CHARLES JORDAN

________________ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civi l Action No. 3

- 11

- c v - 0 1859 ) District Judge: Honorable A. Richard Caputo

________________ Submitted Under Third Circuit LAR 34.1(a)

April 15 , 2013 Before: AMBRO , HARDIMAN, and COWEN , Circuit Judges

(Opinion filed : April 25, 2013 )

________________ OPINION

________________ A MBRO, Circuit Judge2

Appellants Joe L. Andrews and Elgin I. McCargo appeal the District Court‟s dismissal of their Revised Amended Complaint against the Monroe County Transit Authority and Charles Jordan. We affirm in part, reverse in part, and remand fo r further proceedings.
I. On October 8, 2009, Andrews , who suffers from Alzheimer‟s disease, was shopping with his wif

e Annie McCargo

- Andrews. 1 While McCargo

- Andrews was purchasing items , Andrews left the store and attempted to board a Monroe County Tra nsit Authority ( “ M C T A ” ) bus . Bus driver Charles Jordan stopped Andrews and asked wher e he was going and for payment. Confused and disoriented, Andrews began to unzip h is pants and remove his penis. In response, Jordan began yelling at Andrews and then

s hoved and threw him from the bus to the concrete sidewalk

. Jordan at first closed the bus door, but then reopened it and l eft the bus to yell at and then strike Andrews, now lying prone on the sidewalk. Jordan drove away, leaving Andrews on the sidewalk. As a result of the incident, Andrews suffered a hip fracture requiring hospitalization and hip replacement surgery. In addition, Andrews‟ mental condition deteriorated rapidly. He became unable to follow instructions, intensely agitated, and, as

a re sult, required physical restraints, extended hospitalization, and institutionalization. Appellants filed suit against Jordan and the M CT A claiming a substantive due
process violation through a state

- created danger under 42 U.S.C. § 1983 and state

- law

c laims for battery and vicarious liability. Appellees filed a motion to dismiss under

1 McCargo

- Andrews is represented in this case by the execut or of her estate.3

Federal Rule of Civil Procedure 12(b)(6) for failure to allege adequately the elements of
state

- created danger

. The District Court granted that motion but permitted Appe llants to

re - file their complaint. Appellant s filed a Revised Amended Complaint on February 8,
2012 , and Appellees ag ain filed a motion to dismiss. The Court dismissed Appellants‟ claim with prejudice and declined to exercise supplemental jurisdiction ov er their state

law claims. Appellants filed this timely appeal. 2
II. We exercise plena ry review over a district court‟ s dismissal under Federal Rule of Civil Procedure 1 2(b)(6). Byers v. Intuit, Inc. , 600 F.3d 286, 291 (3d Cir. 2010). In order
to surv ive a motion to dismiss under Rule 12(b)(6), a plaintiff must state a “ „ plausible claim for relief. ‟ ” Fowler v. UPMC Shadyside , 578 F.3d 203, 2 11 (3d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009)). Rule 8(a)(2) requires o nly that a plea ding contain “„a short and plain statement of the claim showing that th e pleader is entitled to relief , ‟ in order to „ give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957))

. The Federal Rules do not require a plaintiff to set out a legal th eory at the pleadings stage , and courts have upheld a complaint against a Rule 12(b)(6 ) motion to dismiss even though the pla intiff appear ed to rely on an inappropriate theory. 5 Charles Alan Wright & Arthur R . Miller, Federal Practice and Procedure § 1219 (3d ed. 2004); Bartholet v. Reishauer A.G. , 953 F.2d

2 The District Court had jurisdiction under 28 U.S.C. § 1331, and we exercise appellate jurisdiction under 28 U.S.C. § 1291.4

1073, 1078 (7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal.”)

. III. For the reasons given by the District Court, w e agr ee that Appellants have not ple d a plausible claim for relief under a theory of state

- created danger. That theory is an exception to th e general rule that the state is not required to protect citizens from harm. It applies when state actors acted affirmatively either to expose a plaintiff to danger or to render him more vulnerable to harm. Bright v. Westmoreland Cnty. , 443 F.3d 276, 281 (3d Cir. 2006)

. The MC T A‟s failure to prevent Jordan from harming Andrews is an omission, not an affirmative act that placed him in danger. Although the state

- created danger theory is not applicable, we believe Appellants have stated a plausible claim for relief against Jordan under a theory of excessive force or a violation of substantive due process

. Section 1983 requires a plaintiff to demonstrate that a person deprived him of a federal right and did so under the color of state law. Groman v. Twp. of Manalapan , 47 F.3d 628, 633 (3d Cir. 1995). Appellants have al leged that Jordan acted under MCT A authority to operate the bus

. As the District Court concluded, Appellant s have pled facts that could plausibly demonstrate behavior that “shock [ ed ] the co nscience.” S ee Gottlieb v. Laurel Highlands Sch. Dist. , 272 F.3d 168, 172 (3d Cir. 2001) (“We . . . apply[] the Fourteenth Amendment ‟ s shocks the conscience standard to federal claims alleging the use of excessive force . . . .”); Cnty

. of Sacramento
v. L ewis , 523 U.S. 833, 84 6 (“[ F]or half a century now we have spoken of the cognizable level of executive abuse of power as t hat which shocks the conscience .”)

.5

Thus, Appellants should have the opportunity to proceed on this claim. W hile we affirm the Dis trict Court‟ s judgment dismissing the state

- created danger claim, w e reverse the dismissal of Appellant‟s Revised Amended Complaint , and remand to the District Court for further proceedings

.